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Dual Intent” Nonimmigrant Visas Anticipate That Immigrants Can Permanently Remain in the United States

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Dual Intent” Nonimmigrant Visas Anticipate That Immigrants Can Permanently Remain in the United States The Categories of “Dual Intent” Nonimmigrant Visas Anticipate That Immigrants Can Permanently Remain in the United States By Joyce Lancen, Emily McCabe, Krisztina Szabo, Leslye E. Orloff, Edna Yang and Benish Anver March 25, 2014 Under the Higher Education Act of 1965, immigrant students can apply for and receive postsecondary educational grants and loans if they are “in the United States for other than a temporary purpose with the intention of becoming a citizen or permanent resident.”1 Under the Immigration and Nationality Act and U.S. Department of Homeland Security policies and regulations there are some categories of immigrants who are considered dual intent immigrants. These immigrants have both a short-term intent to leave the United States and a long-term intent to remain permanently in the United States. There are a few types of nonimmigrant visa categories that meet all of the following criteria that make them eligible under the Education Act for postsecondary educational grants and loans. These are primarily U visa crime victims and T visa trafficking victims. They qualify for postsecondary educational grants and loans because they: Are dual intent visa holders; Have a path to lawful permanent residency directly connected to their nonimmigrant visa; They are eligible under U.S. immigration laws to self-petition for lawful permanent residency; They control their own immigration application for lawful permanent residency and are not dependent on a sponsor; and They are a category of nonimmigrants that are highly likely to file for and attain lawful permanent residency. The Immigration and Nationality Act (“INA”) uses the term “nonimmigrant” for visas that are generally granted to foreign-born persons who enter the U.S. for a temporary period of time.2 Nonimmigrant visas are limited consistent with the particular purpose of the visa (i.e. visitor, student, employment, etc.). Nonimmigrants must generally represent to the Department of Homeland Security (“DHS”) that the foreign-born person will only stay in the U.S. for a temporary period. 1 20 U.S.C. § 1091(a)(5) (hereinafter “Education Act”). 2 INA § 101(a)(15)(A)-(V), 8 U.S.C. 1101(a)(15)(A)-(V). See also Non-Immigrant vs. Immigrant, Entrepreneur Pathways, USCIS (last accessed Dec. 12, 2013), available at: http://www.uscis.gov/sites/default/files/USCIS/About%20Us/EIR/EIR-SlideShow/OverviewNew.html (“A nonimmigrant is a person temporarily admitted to the United States for reasons other than permanent residence. An immigrant is a person entering the United States to reside permanently. All people arriving in the United States are considered immigrants until they have demonstrated nonimmigrant intent (demonstrated that you will return to your home country) and have received approval by an inspecting officer to enter the country under one of the nonimmigrant visa classifications”). National Immigrant Women’s Advocacy Project (NIWAP, pronounced new-app) American University, Washington College of Law 4801 Massachusetts Avenue NW · Washington, D.C. 20016 (o) 202.274.4457 · (f) 202.274.4226 · [email protected] · wcl.american.edu/niwap The INA uses the term “immigrant” for foreign-born persons who enter the U.S. with the intent to stay permanently.3 Immigrants are more likely than nonimmigrants to be subjected to numerical restrictions. Most nonimmigrant visas require that the foreign-born person prove nonimmigrant intent. This generally requires proof that the foreign-born applicant has a permanent residence in her home country and that the applicant has no intention of abandoning her home country and remaining permanently in the United States. However, some nonimmigrants are granted nonimmigrant visas when they have both a short- term intent to leave the United States and a long-term intent to remain permanently in the United States. While most nonimmigrant classifications do not allow for the individual to have immigrant intent (i.e. the intent to remain permanently in the United States), there are several forms of nonimmigrant visas that anticipate that the person receiving the visa will be eligible for and secure a path to lawful permanent residency and citizenship. These nonimmigrant visa classifications allow the individual to have both nonimmigrant and immigrant intent at the same time. Practically applied, this allows individuals with certain forms of nonimmigrant visas to be able to apply for and pursue lawful permanent residency while in a nonimmigrant status. This is called dual intent. Under the Dual Intent Doctrine4, some nonimmigrants are allowed to enter and/or remain in the U.S. temporarily with a nonimmigrant visa even though they have expressed a long-term intent to remain permanently. The Board of Immigration Appeals (“BIA”) has held that “a desire to remain in this country permanently in accordance with the law, should the opportunity to do so present itself, is not necessarily inconsistent with lawful nonimmigrant status.”5 The Immigration and Naturalization Service (“INS”), the agency that became part of the Department of Homeland Security (“DHS”), has confirmed that the desire to obtain permanent residence in the future, by itself, does not automatically disqualify an alien from admission as a nonimmigrant.6 A person might enter the U.S. with alternative plans in mind. Thus, a nonimmigrant may enter with the intent to remain only temporarily, but with the hope of acquiring lawful permanent resident status someday if the law permits it. U Visa The Violence Against Women Act of 2000 (“VAWA 2000”)7 created the U visa for immigrant victims of qualifying criminal activities.8 This visa offers temporary lawful 3 INA § 101(a)(15)(A); 8 U.S.C. 1101(a)(15)(A). 4 IRA J. KURZBAN, IMMIGRATION LAW SOURCEBOOK 759-60 (AM. IMMIGR. COUNCIL, 13th ed. 2012). 5 Matter of Hosseinpour, 15 I. & N. Dec. 191, 192 (BIA 1975) (citing Brownell v. Carija, 254 F.2d 78, 80 (D.C.Cir.1957); Bong Youn Choy v. Barber, 279 F.2d 642, 646 (C.A. 9, 1960). 6 Legal Op. No. 97-5 of David Martin, INS General Counsel, entitled “The Effect of an Intent to Immigrate Permanently on an Alien's Inadmissibility as a Nonimmigrant,” (Apr. 8, 1997) (citing Matter of Hosseinpour, 15 I&N Dec. 191, 192 (BIA 1975)). 7 Violence Against Women Act of 2000, Pub. L. No. 106-386, 114 Stat. 1464. 8 INA § 101(a)(15)(U)(i)(I); 8 U.S.C. § 1101(a)(15)(U)(i)(I). Qualifying criminal activity is defined as being an activity involving one or more activities that violate U.S. criminal law, including: abduction, abusive sexual contact, blackmail, domestic violence, extortion, false imprisonment, genital female mutilation, felonious assault, hostage, incest, involuntary servitude, kidnapping manslaughter, murder, obstruction American University, Washington College of Law 2 immigration status to victims of certain criminal activities if the victim has suffered substantial physical or mental abuse as a result of the criminal activity.9 The victim must have information about the criminal activity and a law enforcement official (e.g., police, prosecutor), a judge, a child or elder abuse agency, the Equal Employment Opportunity Commission, the U.S. Department of Labor, a state department of labor, or other government agency eligible to certify U visas under DHS regulations must certify that the victim has been helpful, is being helpful, or is likely to be helpful in detecting, investigating or prosecuting the criminal activity.10 U visa status is a nonimmigrant status granted for four years, but extensions are available if the certifying agency shows that the petitioner’s presence in the U.S. is required to assist in the investigation or prosecution of the qualifying criminal activity.11 In addition, the U visa statutorily includes a path to lawful permanent residency.12 Individuals, who have been physically present in the U.S. for a continuous period of at least three years since the date of admission as a U nonimmigrant and who have not unreasonably refused to provide assistance to law enforcement since receiving their U nonimmigrant visa, may apply for permanent residence, as long as the U visa holder can demonstrate eligibility based upon humanitarian need, public interest or family unity.13 In the case of the U visa one of the requirements of eligibility to attain legal permanent resident status as a U visa holder is to have been granted U visa nonimmigrant status and be a U visa nonimmigrant at the time of application.14 When the U visa nonimmigrant status was created, Congress included a path to lawful permanent residency for the vast majority of U visa applicants. This path was created because Congress understood that victims involved in the detection, investigation, prosecution, conviction or sentencing of crime perpetrators would be at grave risk of retaliation and coercion from crime perpetrators and would need to remain safely in the U.S. where they could continue 15 to be protected by U.S. laws. of justice, peonage, perjury, fraud in foreign labor contracting, prostitution, rape, sexual assault, sexual exploitation, stalking, slave trade, torture, trafficking, witness tampering, unlawful criminal restraint, and other related crimes. 9 INA § 101(a)(15)(U)(i); 8 U.S.C. § 1101(a)(15)(U)(i). 10 Id. 11 New Classification for Victims of Criminal Activity; Eligibility for “U” Nonimmigrant Status; Interim Rule, 72 Fed. Reg. 53028 (Sept. 17, 2007). 8 C.F.R. § 214.14(g) (2008). 12 INA § 245(m); 8 U.S.C. § 1255(m); 8 C.F.R. §§ 245.23, 245.24 (2008). 13 Id. 14 Id. In order to be eligible for lawful permanent residence, a U-visa holder must prove that she was lawfully admitted to the U.S. as a U visa nonimmigrant, continues to hold that status (and it has not been revoked), is not inadmissible under INA §212(a)(3)(E) (Participated in Nazi persecution, genocide, or the commission of any act of torture or extrajudicial killing), has been physically present for three years, has cooperated in an investigation of the criminal activity upon which the U-visa was granted, and that her presence is justified “on humanitarian grounds, to ensure family unity, or is in the public interest.” See also Adjustment of Status to Lawful Permanent Resident for Aliens in T or U Nonimmigrant Status, 73 Fed.
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